The transcripts of the trial of Charles Taylor, former President of Liberia. More…

  • [Open session]

  • [The accused present]

  • [Upon commencing at 2.01 p.m.]

  • Good afternoon. I'd like to open the status conference by first wishing you all a Happy New Year and the best for 2011. Can I take appearances, please, Ms Hollis?

  • Thank you, Madam President, your Honours, opposing counsel, and also our best for a new year, 2011. Today for the Prosecution, Nicholas Koumjian, Mohamed A Bangura, Maja Dimitrova and myself, Brenda J Hollis.

  • Thank you, Ms Hollis. Mr Griffiths?

  • Good afternoon, your Honours and counsel opposite and can we join in wishing everyone a happy new year. For the Defence this afternoon, it's myself, Courtenay Griffiths, with me, Mr Terry Munyard, Mr Morris Anyah and Ms Logan Hambrick of counsel and we are also joined by our case manager, Mrs Salla Moilanen, and the principal defender, Mrs Claire Carlton-Hanciles.

  • Thank you, Mr Griffiths. Mr Griffiths, you have requested this status conference to, I quote, "Give you the opportunity to explain why you failed to file your final brief." Before I ask you to address the Court, for purposes of record, I would ask if the Defence, since they are not mandated by Rule 86 to present any closing arguments or file a final submissions, if it was the Defence's intention to file a final brief.

  • Mr Taylor has provided us with written instructions that we are not to file a final brief until such time as decisions are reached on all outstanding motions and appeals. This is not meant to be a delaying tactic. It is a point, in our submission, of fundamental principle. Now, Mr Taylor is not saying that we should not file a final brief. He has no intention of walking away from these proceedings -

  • Just a moment, Mr Griffiths, so in effect, the answer to my first preliminary question is you did intend to file a final brief?

  • We do intend to file a final brief, circumstances permitting.

  • Well, it appears to me that in your address, you should also encapsulate reasons why you failed to or why you deliberately elected to disobey an original court order made on 22 October and in the light of your refusal to accept service of the Prosecution brief, why you would not be deemed to have elected not to file a response. So I would make those points to allow you to encapsulate them in your address.

  • At the time when the order was made by this Court that final briefs should be submitted by 14 January of this year, certain matters had not arisen which have since arisen, ex improviso, which had to be addressed by Defence and which in our submission requires detailed and concentrated focus by this Court before we can properly decide on all the issues to include in our final brief. At the time that the order was made, we did not know, for example, about the Wikileaks cables which implicated the very integrity of the Prosecution and this Court. Furthermore, other issues have arisen which are still outstanding and which are of profound importance in terms of our final brief. In our submission, by way of example, we have a situation where, in that Wikileaks cable, mention is made of the fact by the US ambassador to Monrovia, that Mr Taylor is still popular in many rural areas of Liberia. How does that square with the Prosecution which claims that he terrorised the civilian population of that nation? Is that not directly relevant to the contents of a final brief? Because our understanding of the word "final" is that all outstanding issues have been dealt with before one can issue a final brief. And we have a large number of outstanding issues which have not been decided by this Court. And Madam President, may I mention in passing that this is not the first time that the Defence have been prejudiced by late decision-making by this Court. You will recall that the decision on JCE came after the close of the Prosecution case which as a consequence meant that we were unable to cross-examine any Prosecution witness on what eventually was stated to be the purpose of this joint criminal enterprise. And as far as we are concerned, we are not prepared to be prejudiced in that way again, which is why we have taken the principled position that unless and until we receive decisions on the outstanding motions and appeals, we will not be filing a final brief.

    And to deal with another matter raised by your Honour, we have refused service of the Prosecution's final brief because we do not want to be accused in due course of tailoring our final brief, no pun intended, based on the contents of the Prosecution's submissions. We want our submissions to stand alone in their own right.

    I don't know if there are any other matters that you'd like my assistance on at this stage.

  • Mr Griffiths, I'm not sure your representing your case quite accurately. All of those outstanding motions that you say you do not wish to be prejudiced by late decisions, they were all filed after you had closed the Defence case and at a time when the Court was expecting you to be preparing your final trial brief. And instead you filed I think it was six or seven motions and now you come to court and tell us that we are delaying the Defence. That seems a colossal hide to me.

  • We totally disagree with respect, your Honour, for this reason. These matters arose and quite legitimately we have to deal with them. Were we supposed to ignore these two code cables, one of which directly implicates the integrity of these proceedings and this Court? Were we supposed to ignore it and then, when raised on appeal, only to be told, well, you didn't deal with it in a timely fashion. That's what the Prosecution would argue on appeal. So we have a right, and a duty, indeed an obligation to our client to deal with these issues as they arise. And that we have done.

  • We said in our decision that, having filed a final trial brief, any further matters that arose from our subsequent decisions of your motions could be the subject of a further application to file additional submissions. Now, why do you have to pull the whole Defence up while we are dealing with matters that you have raised to delay - to delay the case, in my opinion?

  • Well, with respect, your Honour, these are not delaying tactics. And I must make it clear that we are here acting on the written direct instructions of Mr Taylor. He has instructed us that he is not prepared for us to file a final brief until such time as these outstanding matters have been dealt with. And I repeat: They are legitimate matters which impact on the contents of our final brief, and in our submission as a matter of principle, no final, stressing and underlining that word, brief can be submitted until all outstanding matters are finalised. And that is our position.

  • I understand your position, Mr Griffiths, and I understand that you have certain instructions. But I'm simply of the view that a final brief could have been filed, and I don't see any reason now why the Defence should not be deemed to have elected not to file a final brief because when you do now it will be in breach of a court order.

  • Well, your Honour, I've already indicated that it is our intention to file a final brief but it's conditional, and in our submission, were your Honours to take the view that our failure, in effect, amounts to us deciding not to file a final brief, that would be contrary to the defendant's intention, and of course, if your Honours were minded to take such a course, I would have to take further instructions from my client as to whether or not I could continue to represent him in a professional capacity, based on such a decision.

  • Well, I for one am not bowed by that implied threat, Mr Griffiths.

  • It's not meant to be, your Honour.

  • Mr Griffiths, it appears to me from what you have said that the matters you are putting forward now are no different from the matters you put forward in the first request which was ruled upon by way of a written decision, and which my learned colleague has correctly pointed out did indicate that the situation could be reviewed by way of an application when decisions were rendered. Am I wrong on that?

  • Well, we are relying upon those submissions, but you will recall that the submissions, the written submissions, we made, were summarily dismissed without even a request from the Prosecution for a response and so consequently we have not had, prior to today, an opportunity of addressing your Honours directly on these issues and we think that we are perfectly within our powers. It is perfectly within our responsibilities, our professional responsibilities, to raise those issues now and I can say this: At the time when we filed those written submissions, we did not have Mr Taylor's clear, written instructions as to his position. I do have those clear, written instructions here and he has made it quite clear that he's not prepared to instruct us to file a final brief until such time as all outstanding decisions have been made. Those are my instructions. I can't go behind them.

  • Any other matters, Mr Griffiths?

  • Not for our purposes.

  • [Trial Chamber confers]

  • Ms Hollis, will you be address us on behalf of the Prosecution?

  • Yes, Madam President, I will.

    Madam President, it has become even more clear, based on what Defence counsel has just told you that what has happened in this case is that the accused has made a deliberate election not to file a final trial brief. To say that he has made some other decision is to, in effect, give him control over the proceedings. To say that he will file a final trial brief and has the right to do so when conditions are such that he believes are appropriate is to, in effect, let him sit in the middle of the courtroom and run the trial. He has no such right. No accused has such a right.

    The Defence counsel has made it very clear that it was express instructions from the accused, Mr Taylor, not to file on the date ordered by your Honours, even after the Defence had attempted to get a modification or rescission of the order establishing that date. Unsuccessfully attempted to do that. And then he elected not to play. Well, he can elect not to play but this Court does not have to then change the schedule or change the rules to play as he wishes to play. These are serious dignified formal proceedings and he does not control them. It is not any violation of fairness or justice to hold him to account for the consequences of his deliberate and wilful choices.

    Now, as the matter stands today, he has two additional opportunities to present his views and arguments to this Trial Chamber. There is a response that he may file on 31 January. He has elected not to look at the Prosecution brief but it is there and available for him to look at. If he chooses not to look at it and not to file a response, that is once again a deliberate and wilful election on the part of the accused. And it is not one that he should be rewarded for by giving him additional time at some nebulous time in the future to file final submissions.

    In addition to that, he has the opportunity through his counsel to make oral argument to your Honours in February. He may or may not avail himself of that opportunity. Again, that is a choice that lies squarely with him and he should be held to the consequences of that choice.

    We believe, your Honours, that it is not through the actions of this Trial Chamber that we find ourselves here today. It is through the actions of the accused through his Defence team. If you recall, on 22 October, it was the Defence who chose 14 January so that they could file a proper, final brief. The Trial Chamber gave them that choice and then the accused chose to ignore it.

  • I think it was 14 January.

  • Thank you, 14 of January of this year. That was their choice, they were given it and then the accused chose to ignore it. The accused was granted leave to appeal on two issues on 2 and 3 of December and those are among the two issues that the Defence now says must be resolved before they can file a final trial brief. On 2 and 3 December you received no pleading from the Defence saying, Oh gosh, things have changed, now would you please give us an extension of time to file or would you stay these proceedings? They filed their pleadings, their appeal pleadings, on 14 December. No request for an extension of time to file the final trial brief, no request for a stay of proceedings. On 17 December, the day that -- the last official day before the recess, they filed another substantive motion. No request for an extension of time to file their final trial brief, no request for a stay of the proceedings.

    And then, over the break, they busied themselves writing other motions instead of directing their attention to the 49,000 pages of transcript and the almost 1100 exhibits, and for them to tell you that they could not file a final trial brief until such time in the future that they might get a decision that might favour them is simply a disingenuous and bad-faith argument, especially in light of the fact that they only asked for this delay at the very last minute and that they then ignore the ruling of this Court who are the ones truly in charge of these proceedings. They ignore that ruling because Mr Taylor didn't like it. Well, that's unfortunate but that is what happens in formal proceedings. Parties propose, judges dispose, and the parties act consistent with the disposition of the judges.

    This Trial Chamber gave a perfectly reasonable decision about what could happen if, in the future, there was a ruling that justified either additional evidence or additional submissions. That ruling was not based on speculation as to what might happen, but gave a very concrete, a very efficient, way of dealing with any such matters that might arise in the future.

    The Defence chose to ignore that, on instruction of this accused and instead to simply not file submissions. There is nothing that the Defence has said to you today that justifies basically allowing this accused to run these proceedings. He has elected not to file a final trial brief, except under his conditions, and that's not the way it works in a criminal proceeding. If he elects not to file a response, if he elects not to engage in oral argument, those are his choices; his choices, his consequences, no violation of any fairness, certainly not a violation of any principle of justice because every principle of justice says that an accused may not hold a Trial Chamber and a proceeding hostage to his whims and his desires.

    We would suggest that the accused still has the opportunity to put his positions before this Trial Chamber without disrupting the orderly flow of the proceedings, without, in effect, taking over control of these proceedings, and we would ask that your Honours simply adhere to the remaining schedule and it is up to the accused to determine whether he wishes to participate in those two events or not. And the Defence has made some affirmative statements about what these cables supposedly tell you or don't tell you. That is not our position. These cables tell you about an independent court, not a court that are puppets of any government. Of course, that is a matter to be resolved but the Defence raised it and I want you to know that our position is that it's simply a bad-faith argument and not supported by the very cables on which the Defence relies. So, your Honours, those are the submissions we would make on this. The accused choices, the accused's consequences, let us move forward with what the Trial Chamber has determined based on the wishes of the accused through his counsel should be the schedule for final submissions in this case.

  • Thank you, Ms Hollis.

  • [Trial Chamber confers]

  • Mr Griffiths, two things. One, it seems from your submissions that you are waiting upon decisions from the Trial Chamber and also from the Appeals Chamber. Would I be correct?

  • Because I think from your submissions it appeared as if you're only waiting for decisions from the Trial Chamber. Secondly, according to the agenda for this Status Conference, you are supposed to respond to any ensuing concerns. Do you have any response in this regard?

  • Well, to this extent: First of all, responding to the comments made by my learned friend, in our submission, Mr Taylor is not seeking to control these proceedings. Rather, he's seeking to ensure that his trial is fair. And whereas my learned friend suggests that rather than concentrate on the final brief we busied ourself over the Christmas recess with other matters, now, that may arise from the Prosecution's own embarrassment at some of the details which have emerged, ex improviso, since that date was set, but we submit that the cumulative effect of all the issues which have arisen, ex improviso, in our submission, supports the position which we now take. Now, so far as other concerns, I note that the Prosecution have served a - or filed a motion seeking corrections to the final brief which they submitted. We are not in a position to deal with that, not having seen the final brief or, indeed, looked at the suggested corrections. So as far as that is concerned, we are not in a position to comment because we submit that it is important, as guaranteed by Article 6, that a defendant has adequate time and facilities in order to prepare his defence and we are submitting that we have not had that, and that is the fundamental basis for our submissions.

    I don't know if there are any other matters with which I can assist.

  • I'd like to be clear about this situation, Mr Griffiths. You have stated that Mr Taylor, I quote, is not seeking to control the proceedings. But the instructions it appears to me that he has given you are tantamount to contempt of a court order, which was made on 22 October and the - you said about time to prepare, you've also mentioned time to prepare, and it was Mr Munyard on behalf of the Defence that submitted 14 January as time to prepare. So what you are, to my mind, saying is your instructions are in breach of an order.

  • We would disagree with respect, your Honour. The time when the Defence made those submissions as to the timetable, Mr Munyard didn't have the benefit of a crystal ball to know that other important matters would thereafter arise requiring our attention. And so consequently, the order must necessarily be contingents upon unforeseen events which have thereafter arisen. So that to be - for that to be constantly thrown in our face, that you are the ones who established this timetable, really doesn't take account of the fact that at the time that we did, we could not have foreseen any of these events which required our urgent and focused attention.

  • I note, Mr Griffiths, that you also indicated that you would not be in a position to respond to the Prosecution motions and the corrigendum concerning corrections to the final brief. We had proposed that possibly that could be dealt with orally today. However, in the light of your indication, can I take it that you are not prepared to proceed with that matter?

  • Well, I'm not in a position to. It's not a question of not being prepared to. I am simply not in a position to because I've not seen the final brief, I equally have not and quite deliberately not, looked at the recent motion filed by the Prosecution seeking corrections.

  • Thank you. We will adjourn briefly to consider these matters.

  • [Break taken at 2.30 p.m.]

  • [Upon resuming at 3.39 p.m.]

  • The Trial Chamber has considered the submissions of counsel. This Status Conference was convened on the application of the Defence to, and I quote, "Give Defence an opportunity to explain why it failed to file its final brief on the 14th of January 2011 as ordered, and why it has refused to accept service of the Prosecution final brief."

    On 22 October 2010, the Trial Chamber issued orders to the parties inter alia to file their respective final briefs by 14 January 2011. We learned today that lead counsel from - from lead counsel for the Defence, that Mr Taylor has instructed him not to file a final brief until decisions on outstanding motions and appeals are rendered. In other words, Mr Taylor instructed his counsel not to comply with the Court's order.

    The Defence has also refused to accept service of the Prosecution final brief.

    The outstanding appeals and motions referred to were filed after the Defence closed its case, at a time when the Trial Chamber expected that the Defence would be preparing its final brief. The decisions on outstanding motions and appeals may call for further orders to be made in relation to the presentation of the Defence case and in the interests of a fair trial. But the Trial Chamber emphasises that any such orders will be made by the Trial Chamber and not by Mr Taylor. Mr Taylor does not have the option of obeying or disobeying court orders as he sees fit.

    The Trial Chamber has a duty of fairness to all parties, and a duty to ensure an expeditious and fair trial. In this vein, the Trial Chamber has indicated that it will afford the Defence the opportunity to apply for ancillary relief, if necessary, after the decisions on the very recently filed motions and appeals are rendered. The majority of the Trial Chamber, Justice Sebutinde dissenting, consider that they have not heard submissions that causes the Trial Chamber to review or amend the original orders rendered on 22 October 2010 and the majority decision of 12 January 2011.

    Justice Sebutinde will make a dissenting - give a dissenting opinion.

  • Very briefly, I have carefully listened to the submissions and explanations given by lead counsel for the Defence. For me, I consider that this is a very important stage in the trial, in this trial, the stage at which each side wraps up its case. For me, the essence of a fair trial at this stage is to afford each side to wrap up its case before the judges. The reasons given by the Defence, explaining why they are not in a position to wrap up its case and file their final trial briefs, in a nutshell, are that there are decisions they expect from the Trial Chamber and from the Appeals Chamber, the results of which may well affect the content of their final briefs and the content of the defence of the accused. For me, it would not be fair to ask the defendant to wrap up his defence when there are issues on the table of the judges that we have not been able to deal with yet. In other words, the ball is in the court - is in the court of the Court, so to speak.

    In my view, it is not unreasonable for Mr Taylor to say to the judges, "I will file a trial brief as soon as you give me the judgments or the decisions that I'm waiting for." On the other hand, what we are saying to Mr Taylor is, "File a piecemeal final brief in your defence."

    Article 17(4)(b), I think, guarantees the accused adequate time to prepare his defence and preparing his defence in my view could not be more stressed than at this time when he's asked to wrap up his defence. He has asked for time, time to do what? To allow the judges to deliver the judgments that are due from them. He has not asked for extra time, to dilly-dally. He's simply waiting for decisions that are pending before the judges.

    Now, this is not to blame the judges per se, that they have taken their time over the judgments. I do not know why, for instance, the appeals are still pending. It could be that some of the filings haven't closed. Whatever the reasons are, the bottom line is that the accused ought, at the very minimum, to be afforded an opportunity to prepare his final defence with all the pieces before him, and in my view, it is not fair to ask him to prepare piecemeal defences.

    Now, I would personally have been of the view that an adjustment could be made to accommodate Mr Taylor by about a week or so, but that an effort should be made by the judges to deliver the judgments due.

    Those would be my brief arguments.

  • If there are no other matters, I will adjourn the Court until 8 February 2011.

    Mr Griffiths, any other matters?

  • There are no other matters which I wish to raise.

  • Thank you, Ms Hollis?

  • No, Madam President.

  • Thank you. Accordingly, the Court is adjourned until the 8th of February.

  • [Whereupon the Status Conference adjourned at 3.47 p.m.]